The 2019 Amendments/Revisions to the Family Code - Highlights!
Every year we try to review the changes to the California Family Code, along with related California Rules of Court and other statutes affecting family law proceedings. We have updated our Family Law Statutes Page, which is a portal with links to over 350 statutes and rules pertaining to California family law so that the information provided is current. (We offer commentary on many of those pages).
This year introduces HUGE changes to existing law in a number of areas. See the discussion below as to amended Family Code section 4325, for one example. The war on domestic violence is the big story for 2019, but there are other important changes and additions - including relating to a child's right be supported and to be free from abusive settings - as follows (and in no particular order):
Spousal Support and Domestic Violence
Family Code section 4320 - The 'Judgment Spousal Support Factors'. Family Code section is admittedly the most important and central spousal support statute in California (including with regard to the issuance of "temporary spousal support" orders, which also have significant impacts on applications relating to attorney fee awards. We have written elsewhere about that. Section 4320 has been amended to address factors relating to domestic violence. Subsection 4320(i) formerly required a family law court, when fixing spousal support, "(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party." 4320(i) now reads:
"All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence."
These changes are significant, but mainly because they clarify that "no contest" orders in criminal cases can be considered (which most trial courts already do) and the section now states expressly that permanent restraining orders are to be considered (as prima facie) evidence affecting whether or not to award spousal support. It is tightening the screws on trial courts to refuse to award spousal support in cases where domestic violence, and clarifies that the court must consider ALL documented evidence of a history of DV. These rules will be applied to applications and RFOs for temporary spousal support!
Domestic Violence and Division of Interests in
Community Pension and Retirement Benefits
Family Code section 4325 - This spousal support statute, also dealing with the potential consequences of domestic violence, has likewise been amended to specify and tighten up what DV evidence should be considered by family courts in ordering, or declining to order, it. Moreover, it authorizes trial courts to award 100% of the community interest in a victim's pension to be awarded to the injured spouse.
This will be a game changer. It will certainly incentivize DV claims and litigation over them in a ton of new ways. This amendment deserves its own blog. While domestic violence in any form is to be deplored, unfortunately DV allegations have long been used and misused for strategic reasons relating to custody of children, control of the family residence, and to avoid potential support obligations. While section 4325 speaks in part to convictions of DV (which may have included a proof beyond a reasonable doubt evidence standard for cases that go to trial), it also continues language found in section 4320 and elsewhere about "documented evidence" of DV that often is found in the form of permanent DV restraining orders that only need to be established by a preponderance of the evidence. This makes resisting DV applications absolutely critical, particularly for those who are innocent of the charges!
More to come on this topic!
Child Support Factors
Family Code section 4058 - This is core statute with big implications specifically for child support, but also in terms of defining gross income for purposes of spousal support. Subsection (b) has been rewritten. It used to say:
"The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." It now reads:
"(b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children."
This appears to be a clarification of what factors the legislature considers to directly impact the best interests of a child for purposes of child support awards, and so wants family courts to consider.
Ending of Parental Duty to Support Children
Family Code section 3901 - Former law provided for the obligations of parents to support an unmarried children until the age of 18 years, or no later than the age of 19 so long as that child is a full-time high school student, whichever first occurs. The amendment excuses the child from being a full-time high school student after age 18 if the child has a medical condition documented by a physician that prevents full-time attendance.
Child Visitation Rights of Parents
Family Code section 3100 - This statute requires courts to grant reasonable visitation to parents, unless it is shown that would be detrimental to their best interests. It has been greatly expanded to help define what is detrimental to their best interests, particularly in the context of domestic violence orders. It provides much greater limitations to visitation in such instances. It also allows visitation orders to nonparents "having an interest in the welfare of the child." It also limits visitation orders in cases where temporary DV orders have issued, but have not been finally determined.
This is a very important change that is likely to make it much harder for domestic abusers to visit their children. It is essentially an expansion of the joint and sole custody restrictions set forth in Family Code section 3044, which has likewise been tightened as discussed below.
Family Code section 3011 - This is the critical "best interests of child" [BIC] statute, and therefore a very important revision of the Family Code. It requires courts to make the BIC determination consistent with specified findings, particularly relating to domestic violence.
Child Custody Presumptions and Domestic Violence
Family Code section 3044 - As any custody lawyer (and family court bench officer) will tell you, this is an extremely important statute for families where domestic violence has been established in terms of the rights of a perpetrator to have legal and physical custody, and visitation, with their children. Existing law establishes a rebuttable presumption that sole or joint custody should not be awarded to the perp who has been found to have committed domestic violence on anyone in the family within the past 5 years, and if the court finds the presumption has been rebutted the judge is required to specify what facts lead her to that conclusion.
The changes expand the presumption in situations involving DV against persons in other specified situations (outside the family unit at issue) and sets forth additional facts that the court must find before overcoming the presumption.
Pets as Property
Family Code section 2605 - "The Family Pet" statute. Many of us view our pets as little "people" akin to our children, and this new law both confirms and rejects that view. It rejects that view in specifically authorizing courts to award "ownership" of a pet animal in a judgment for dissolution or legal separation. Pets are property. It reinforces that view by authorizing courts to issue orders, prior to final determination of ownership of that property, "to require a party to care for the pet animal." [Italics added]. What is odd about this language is that it does not mention "visitation" - can it be used by a pet parent who affirmatively wants control of or part-time care of the beloved family dog? In terms of the strict wording the statute, only so if that parent is asking the court to require that they be ordered to care for the pet. What does the word "care" mean? It "includes, but is not limited to, the prevention of acts of harm or cruelty" and "the provision of food, water, veterinary care, and safe and protected shelter." Therefore, a pet parent hoping to use this statute to gain custody of the pet may find that it provides no such authority. Maybe trial courts will use the "not limited to" language to include visitation orders. Certainly, however, a pet parent can invoke this statute to force the other side not to harm the animal and to properly care for it until such time as that animal's owner is finally determined. There is no other California family law statute that specifically addresses pets (except in cases of domestic violence - see Family Code section 6320(b) and section 6320.5, including as in visitation, but in my experience courts have been issuing such orders for years without direct statutory authority. In any event, some news media have wrongly publicized the nothing that this is a pet custody/visitation statute - it isn't, at least until the final division of the community property under Family Code section 2550, at which time (and only at such time) a court can award joint ownership of the pet per subsection (b).
"Pet animal" is defined as any animal that is community property and kept as a "household pet". The legislature did not see fit to specify what constitutes the "household." Apparently our petly children may not include the goat or horse that is kept in the yard (or boarded elsewhere), or that pot belly pig unless it roams free within the home from time to time. Presumably, lizards and snakes, and birds, (not to mention dogs and cats) qualify but maybe you should move them from the garage into the house if you want want to avail yourself of these new rules.
I am not saying that this statute is not needed. But since "care" is defined in part by acts of animal cruelty as outlined in California Penal Code section 597, we now have a whole new landscape for nasty litigation and accusations involving "bad acts" similar to what is experienced in custody disputes on a daily basis. The good news is that in all my almost 37 years of family law practice, I've almost never seen a case where severe animal cruelty was alleged (I recently had a case where the W alleged that my client, the H, cruelly left the doggies in a crate for times during the day - that went nowhere).
Given that we reside in democratic republic of California, explicit rules relating to temporary custody and visitation of your pup are, I predict, just around the corner! Which is a good thing - we family lawyers and our clients need more things to litigate over! Seriously though, as a species we need to quit viewing living creatures as "things" and "property" but instead as sentient, emotional creatures. Stay tuned.
THIS IS NOT AN EXCLUSIVE LISTING OF ALL OF THE 2019 FAMILY CODE AMENDMENTS. In particular, almost all of the Uniform Parentage (paternity) statutes have been revised. We've updated those in our Statute's Page.
Good luck out there!
BTW, I took the picture of the young male Big Horn from my home.